A person is wrongly convicted of a serious crime, then fresh evidence reveals they are, in fact, innocent. It’s a thriller movie formula and you’d hope that if this were to happen, justice would prevail.
A bill introduced to the New South Wales parliament earlier this month, however, jeopardises this very process. It aims to abolish the DNA Review Panel, which is empowered to arrange fresh DNA analysis of defendants convicted of very serious crimes who claim to be innocent. The panel could then refer cases back to the Court of Criminal Appeal (CCA). Currently, the bill abolishing the panel looks likely to pass.
The DNA Review Panel should be replaced with a Criminal Cases Review Commission (CCRC) with the powers and resources to effectively uncover wrongful convictions.
During its six-and-a-half years of operation, the panel received about 30 applications, but made no referrals to the CCA. The NSW government has taken this as a sign that wrongful convictions simply don’t occur in NSW. But this is a dubious conclusion; inevitably, errors are made.
It’s true that relatively few wrongful convictions are discovered in Australia – Lindy Chamberlain, the Mickelberg brothers and Andrew Mallard are a few rare examples. But this shouldn’t be taken to mean that Australian criminal justice makes few mistakes. The reason few errors are discovered is that it’s so hard to identify them.
A criminal conviction is very difficult to dislodge. At trial, the defendant is presumed innocent. But the appeal court will presume the convicted defendant to be guilty, and therefore be reluctant to overturn the jury verdict.
There is an assumption that the jury of 12 is better suited to fact-finding than a bench of three or five appeal court judges. It would be undemocratic for the appeal court to intrude upon the domain of the jury – the “constitutional fact-finder” – and the appeal court will also be reluctant to give encouragement to appeals, and create too much work for itself.
After appeal, it is even harder to overturn a wrongful conviction. Traditionally, the defendant may petition the Crown for mercy or a referral back to the appeal court. However, this is not a task the government is well suited for, as political considerations inevitably intrude.
Consider the ongoing Tasmanian case of Susan Neill-Fraser, convicted for the murder of her husband and the subject of the documentary Shadow of Doubt. The film makes a strong case that the evidence against Neill-Fraser was severely flawed, and that there are other highly plausible explanations for what may have happened to Neill-Fraser’s husband.
And yet, even though Neill-Fraser is educated, articulate, well-resourced, and has the assistance of family and supporters, she still cannot get the Tasmanian government to refer the case back to the appeal court.
In recent decades, some jurisdictions have established alternative post-appeal mechanisms. England, Scotland and Norway have Criminal Cases Review Commissions. NSW has its DNA Review Panel. And South Australia recently introduced a further appeal on the basis of “fresh and compelling evidence”. But in NSW at least, the eligibility requirements for application to the Panel are exceedingly narrow. Defendants could only apply if they had been convicted of the most serious offences, and their conviction was prior to September 19, 2006.
Further, the defendant must specify the biological material for testing. How is an innocent defendant supposed to know enough about the crime and the investigation to be able to satisfy this requirement? Of course, relatively few crimes other than sexual assaults and crimes of violence where identity is in issue would generate useful DNA evidence, let alone evidence that had been gathered and preserved. So it’s not surprising the DNA Review Panel achieved nothing.
In NSW, wrongfully convicted defendants may also seek to get their cases back before the CCA, by application to the Supreme Court. But the Supreme Court has indicated that it will require something pretty extraordinary to make a referral. As the Supreme Court told serial killer Ivan Milat, it:
…is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted.
A dozen convictions were overturned on subsequent appeal in the first years of the 21st century in Australia, but these were virtually all cases of police corruption uncovered by the Wood Royal Commission. Other than that, referrals to the appeal court and quashed convictions are extremely rare.
Besides police corruption, there are many other causes of wrongful conviction: biased or incompetent experts, prosecutorial misconduct, lying witnesses, mistaken eyewitnesses, ineffective defence counsel. But there is no mechanism for investigating these possible causes. The burden is placed on the defendant to do the work, yet how is the defendant, in prison, without resources or skills, meant to carry this burden?
This is why the new South Australian appeal provision, established in May 2013, is unlikely to achieve anything. It has been wrongly described as a new “right of appeal”; but there is no right. The appeal court’s permission is required, and the court can only give permission if it thinks there is “fresh and compelling evidence” of innocence.
How is a wrongfully convicted defendant, in prison and with few resources or skills, going to discharge this burden? The South Australian parliament patted itself on the back for this reform, quoting a letter from former High Court Justice Michael Kirby, who described it as:
…an instance of…principle triumphing over complacency and mere pragmatism.
But it is difficult to see this reform giving much hope to the wrongfully convicted.
The new South Australian law came out of independent MP Ann Bressington’s bill to establish a CCRC. The state government rejected it, and South Australian attorney-general John Rau claimed:
South Australia is not Texas. This state is not awash with wrongful convictions and the falsely imprisoned.
But since the original bill proposed an English-style CCRC, England would have provided a better comparison. With the establishment of the English CCRC, the quashing of convictions jumped from four or five a year to 20 or 30. The reason for the increase is that the CCRC is equipped with the resources and powers to investigate potential wrongful convictions.
Previously, many wrongful convictions remained hidden, just as they are in Australia today. And the English CCRC has the respect of the Court of Appeal, and is perceived by the British government as good value for money. Earlier this year, it passed its Triennial Review and received a budget increase.
Australian governments should stop pretending wrongful convictions don’t happen here. Instead, they should recognise that they are an inevitable byproduct of criminal justice, and set in place an effective and fair mechanism to deal with them.